The Proper Role of Government

Admittedly, I am shocked to discover that several of you have drifted toward the political left.  I've been impressed at your attempts to justify your positions and with the respect with which you all appear to be treating each other.  Like Jefferson and Adams, we all have the same end goals and we recognize that we all learn more by the open and friendly debate than if we all came to the table with the exact same perspectives. 

I posted on my own blog the full text of Ezra Taft Benson's essay "The Proper Role of Government" and I highlighted the points that I thought most powerful (well, that most powerfully supported my position anyway).  I'd invite you all to read it and let's discuss.  

I do not hide in the coat-tails of his ethos as a former president of our church to say that I am right and you are wrong. This essay was given as his opinion, not as doctrine nor a church position. So, by all means, if you disagree with something he said in this essay, you won't go to hell by questioning it.

Quick Thoughts

On constitutional interpretation:

Just wanted to take a quick second and clarify my position on constitutional interpretation. While I believe it's foolish to ignore original context in some cases, I also believe that trying to figure out what a handful of elite individuals meant when they wrote a document during a hot Pennsylvanian summer more than 200 years ago is not the best way to answer questions about social issues that affect us today. Original intent is difficult to divine. Contexts change. Ambiguities arise. The legislative process is too slow to adapt to new contexts, and too unlikely to respond to people who don't speak loud enough. We need an institution like the Supreme Court that is capable of adapting quickly.

Yes, the constitution is a check on the Supreme Court. But not in the sense that any hypothetical "original" interpretation of the constitution should have more weight than any other guide. Modern interpretation of the constitution should be the greatest guide.

The People should amend the Constitution when their modern context of what is right moves away from the text of the Constitution. But when the text of the Constitution is flexible enough that it may be interpreted in a manner adapted to modern contexts, the People shouldn't be required to amend the Constitution to tell the Court that the Court's hypothetical original interpretation is wrong. If the Court's modern interpretation is disagreeable with the People, the People may then correct the Court by amending the Constitution to clarify to the Supreme Court that the Court's modern interpretation is not the will of the People.

I don't have any problems with the idea of 9 judges having such power. In my opinion the good of having an arm of the government that can do what our modern judiciary does far outweighs the risk of the Supreme Court departing significantly from the good of the people. Besides, there are still other checks--for example, the President and Congress can work in tandem to add more judges if the 9 get out of control. E.g. FDR.

Alvin (and others) -

On your "separate but equal" arguments, this is exactly why my gut instinct is that we should move the opposite way and remove all reference to marriage in any law or regulation, not just the assignment of benefits. What is marriage in the absence of religion? Is it anything more than a contract? Let people contract with whomever the please, and leave it to religious institutions to define and preserve the institution of marriage.

(I'm still a little uneasy on this idea, though, when it comes to adoption).

If you have to learn about constitutional law from one source, Rex Lee is a good one.

The right to privacy has always been, in my mind, the most suspect of "rights." But at the same time, I don't believe you should need a constitution to define a right specifically, if the right is a natural right. And I don't see anything wrong with the Court recognizing new natural rights--i.e. rights that are inalienable, but that we just haven't "seen" before. Substantive due process is just a legal way of saying that something's a natural (legally speaking, "fundamental") right. If we didn't have substantive due process, the Court would just find another legal concept to cling to for these natural rights. Even Scalia and Thomas have come to rely on the substantive due process concept from time to time.

Interesting thoughts on the First Presidency. I'll have to think about that some more.

The Legend of Jesse Barnes

We just had a missionary in my ward come back from Romania. I told him that I had three friends that served in Romania and loved it (Jesse Barnes, Peter Williams, and Tyson Wiser). He said, "That Barnes name sounds familiar." Clearly, Jesse's work in Romania has become mission legend.

Separate But Equal?

Christopher and others have expressed the following points (if I understood correctly)
1. Homosexuals shouldn't be denied governmental benefits based on sexual orientation.
2. Marriage is only a religious institution
3. There is no "right to marry"
4. The government (by amendment) should define marriage as between a man and a woman.

I feel like I'm missing something because these series of statement have some pretty important contradictions. If marriage is a religious institution, then why should the government define the terms under which marriage, a religious institution, is allowable. Why do I need government to tell me who can get married and who can't?

If government starts getting involved in the religious institution department, then could government also define how we should baptize people? In my mind, the only reason to ask the government to define marriage as between a man and woman is to deny governmental benefits based on sexual orientation. The idea of separate (in this case, marriage vs. partnerships) but equal has already been tried in this country. Now, if you think there should be some rights denied, such as adoption, I can agree with the logic of defining marriage, but I don't know how you justify it from a legal point of view.

The Prophet, Policy and Principle

I happen to side with Jesse "The Legend" Barnes on this one. (though his reasons may differ from mine)

This is a matter of policy rather than a principle. The principle is marriage should be defined as between a man and a woman. Marriage is defined in the Proclamation, and I fully support that definition. Another principle may be publicly supporting the family and gospel in the community. But the policy, suggested by the prophet, is to support an amendment defining marriage. A poor analogy is family home evening. The principle is to teach your children the gospel and have a regular habit of family time. The policy is to have it on Monday night. The church has set that time apart. However, if a family has their FHE on a Tuesday or Sunday, I don't think this is wrong in any way. I think you can still agree with and in many cases follow the principle without following the policy.

I realize that I am treading on thin ice trying to be a judge over what is principle and what is policy. And maybe the real principle is one of obedience, in which case my whole argument is bunk (but I've written to much to stop now).

I do think it is important not to confuse policy with principle. If you do, then, for example, you may get thrown for a loop every time the temple ordinances change. I often see members get upset when things aren't done in the way that they are used to (if a convert says a prayer or testimony differently, if someone doesn't dress a certain way, etc.). The church has a LOT of policies that help make the church fairly standard wherever we move, and I appreciate that. But given how different the church is today form the early days, most of the standardized church service is not principle.

The Original Living Constitution

There are a number of issues in Constitutional Law, as Christopher said, where a judge must decide between competing interests, such as federal versus state jurisdiction, private versus public interests, etc. In most of these cases, it is part of the Supreme courts duties to find a balance. The first amendment clearly protects the freedom of speech, but the courts have had to decide exactly what free speech is allowed. This can be particularly tricky when it comes to things like pornography. What should be allowed on television and what shouldn't? This is an area where the modern culture and community, as Scott suggested, very much play a part in what is allowed. The Supreme Court has even said that limits in this area depend on what a jury of peers in a particular area would find offensive, which might vary from one part of the country to another.

Now, I find myself more in the originalist camp, in that I don't think judges should add in rights to the Constitution that aren't there. Rex Lee (I know nothing about Constitutional Law besides what I learned from him.) suggested "substantive due process" decisions and the abortion ruling, based on a right to privacy, may be examples of this. However, there are certainly cases where the judges' interpretation of the Constitution is based on their own sense of morality and the community. And in these situations, whatever the Supreme Court decides becomes, as Karl said, the right decision. I found it interesting that besides the cases mentioned above, Rex Lee never said a decision was liberal or conservative. It was just the ruling of the court.

The First Presidency: The Supreme Court of the Mormon Church

I think the discussion of right and wrong court decisions parallels nicely with a discussion of right and wrong church policies. In my crazy late night analogy, the scriptures are like the Constitution and Joseph Smith the founding father and the First Presidency is the Supreme Court. Is any decision by the first presidency wrong? What about the practice of not letting blacks have the priesthood? Now, that it has been "reversed" is it safe to say that it was wrong before? Or is it like the Dred Scott argument that has been made here that though it seems wrong now that it may have been right at the time?

Similar to the courts, the first presidency has made many decisions that one could argue are influenced by modern culture. For example, I am very grateful that we could wear shorts while we were at BYU. And, while I don't necessarily agree with it, some would argue that the culture of the time affected the reversals on polygamy and blacks. A strict originalist in Mormon terms would I guess be a fundamentalist, which of course none of us are. And the opposite extreme would be the RLDS church which hardly believes in the Book of Mormon any more. I guess I'm somewhere in the middle with both the judiciary and the church.

My perspective(s) on the rightness of judicial decisions

Hmm, with regards to Jesse's statement, "Karl mentioned his dislike for the term 'legislating from the bench'; that is, he thought it exaggerated or inappropriate or overused or...", I'm glad someone's managed to clearly explain what I mean :)

It dawned on me that I never responded to Jesse's question, so I suppose I should.

The relativist in me says no, the Supreme Court cannot wrongly decide a case, because, legally speaking, right and wrong changes as society changes, and we, via our constitution, have entrusted them to be the ultimate authorities as to what is right or wrong in our society.

I suppose they could actually make a technical legal error independent from any interpretation of "right" or "wrong." But that's not going to happen too often with how rigourously their decisions are reviewed, and besides I don't think that's what the question was getting at.

From an absolute moral standpoint, yes they can make a "wrong" decision. But seeing as there's only one person I trust on absolute morals (and it's not me), I don't think it does a lot of good for us, as a society, to classify decisions as right/wrong from an absolute moral standpoint. Besides, the court is not intended to be an authority on absolute morality.

Now, another option is would be to say that the Court's rightness depends on how well it substitutes as a proxy for the prevailing social attitudes in the current historical context. But what if they make a decision that runs counter to prevailing social attitudes? Is that wrong? Again, such a classification is not very useful because it requires that one can capture, at any time, the exact social attitudes of the nation. But, even if one could do that, I don't particulalry favor this perspective because in the past they've made decisions that I'm fairly certain ran counter to then-prevailing social attitiudes, but that would today be considered "right."

Here's yet another perspective on it... One of the best aspects of our American system is that we have a judiciary to keep government in check. Unfortunately, we have to rely on humans to serve the function of the judiciary, and so we inevitably are going to disagree with our judiciary some of the time. However, to preserve the integrity of the system, we must operate under the assumption that the Court produces "right" results. When they produce results with which we disagree, we can work within the system to change the law and/or social sentiment, thereby creating different results. But until the law is changed, the Court's decision is still "right." In fact, by acting in compliance with the result, impute "rightness" to the result.

Not quite sure where I'm going with these different perspectives, other than to say that, from a legal perspective, I do not believe that the Court is likely to ever be "wrong" within the current historical moment. Barring technical errors, the only time a decision may ever be classified as legally wrong is when a decision is later overturned by the Court itself.

From my personal perspective, the Court can reach decisions that yield "wrong" results--i.e. results to which I am opposed. But I would be very reluctant to say that a still-standing decision was itself "wrong" or "incorrect."

Ryan and Jesse comments RE: gay marriage

I'm sorry to clog things, but wanted to pull this out of the comments. If I had more time I'd summarize...but copy-paste is so fast!

Ryan said...
Jesse, I find your comments extremely interesting. Thank you very much for sharing. Now, I don’t want to pry, and I’ll understand if you don’t comment, but I’m really interested in this issue as it pertains to the church. It seems to me that the First Presidency has put the weight of their calling into this issue and have evoked very strong and religiously charged language, asking people to devote "time and means" if I remember correctly, to encourage church members to be actively in favor of the marriage amendment in California. What would you do if you were in California? Do you have a moral obligation as a member of a democracy to speak you views, even if they aren’t in agreement with the church? Would publicly speaking those views undermine your commitments to the church? Or do your views make you more likely to view the teachings of church leaders as having a natural, as opposed to a divine, origin? I know I’m trending on delicate ground, but I feel these conversations are important to have somewhere. And this seems to be a group of very intelligent and accomplished people from many fields of study, who seem to have strong faith as well, so it seems like an ideal group of people to help me make sense of things. Just as a side note, I enjoyed reading an extensive interview with the apostle constitutional lawyer/judge, in which he talks of the prophet and the ERA amendment (he said the church couldn’t defend it’s position rationally, only could appeal to revelation), and about disagreeing with church positions, apostasy, etc. http://newsroom.lds.org/ldsnewsroom/eng/news-releases-stories/elder-oaks-interview-transcript-from-pbs-documentary
July 20, 2008 12:02 PM
Jesse said...
I stated above that I believe the court was wrong to decide what they did. I further argued that this is not a question for the courts to decide. I think that is consistent with the church's position. I didn't say anything about my views on a constitutional amendment. I believe the amendment is meant as a check to perceived judicial overreach. I am therefore in agreement with it. I don't view that as inconsistent with what I've said elsewhere. It has seemed to me that, in the past, some leaders of the church have given insufficient thought to my earlier point: even if I personally believe something to be immoral that does not mean the government should force others to act in some way (take drug/alcohol laws for example). I deal with this conflict the way any of you would---through prayer, meditation, scripture study, etc.
July 20, 2008 6:08 PM
Ryan said...
I can sympathize with the feeling that this is judicial over-reach. But if I understand you, you like the California amendment but for a reason that is slightly different from the church's reasoning. Your focus is more on countering the judicial over-reach. I get the impression that if the people vote to strike down the amendment, then you would be at peace with that, because the people have had their say, they have countered a judicial over-reach? When you talk about not forcing people to do the moral thing,I think you're saying that the courts shouldn't force their sense of fairness on others, rather than saying that people shouldn't force their heterosexual values on others? Just trying to understand, because the first time around I got the impression you were talking about the latter, but now I think that you're talking about former.I was in Massachusetts, too, when this was all settled. And reading the newspapers that day I felt a sense of peace that though I was opposed to it, that our elective officials had voted for what they felt was right, and that many of them had struggled with it a lot, and that it appeared that a consensus had been reached. Most people seemed happy about it. I was glad that the constitution process had been followed and that all branches of government had been involved to some extent. I appreciate you're point of prayer and meditation, but there must also be study. I believe there is room in the church for honest differences of opinion, honest questioning, investigative study, and open dialogue. I kind of sympathize with Tennyson, "There lives more faith in honest doubt, Believe me, than in half the creeds." But I really don't want to be a trouble maker about these things, so I won't push the issue. Just thought I would throw something out. I'm still an active church member with hope and belief. But I'm certainly on a journey to understand more. I think my training as a scientist has given me an appetite for asking a lot of annoying questions.
July 20, 2008 9:18 PM
Jesse said...
Ryan-Thanks for your comments and questions. I agree with your thoughts on dissent and active questioning. My only regret is that this is all taking place in the comments---and I'm trying to avoid comment discussion where possible. I'd move it to the main page if I had the time to quickly summarize or something.In any case my "not forcing morals" argument is about both the contexts you mentioned. Courts should interpret the laws as set forth by the constitution and legislation, period. I also am in favor of individual freedom---even if I personally disagree with it. I would not favor laws that restrict individual freedom for moral reasons. A law against homosexual acts, for example, I would not support.I also have to comment on the MA ruling. I disagree with your view that the issue was in any way properly "settled." The legislature delayed the vote until after state elections were held (which indicates that the amendment had broad support) and only voted after the supreme court found them in abdication of their responsibilities under the constitution. The amendment process required a second vote which took place later that year...needed 50 votes to be put before the voters...got 45 votes with 4 absent. My experience with MA politics has not been the least bit favorable---I can think of few more corrupt and less transparent institutions. Polls indicated the amendment would have passed had it been put before the voters.Anyway as I indicated I'm not that worried about the MA ruling...I just wouldn't personally hold it up as a model of the system working correctly.

Just like the good old days

(This is starting to get too reminiscent of the old symposiums. Here I am, thinking I have a whole Sunday afternoon to catch up on things like sleep and sorting through pictures and home videos, when all of the sudden I'm drawn in . . . )

Taxes

So Jesse and I appear to agree that taxes are a mechanism to redistribute the costs of benefits that, due to market failures, are not adequately borne by those who receive them.

I also agree that, in fairness, positive externalities must be considered. For example, the benefits of technological progress justify intellectual property laws and rights. I even agree that productivity is a positive externality.

However, I believe that the market more than fairly compensates for productivity. I imagine that I also believe that the costs (negative externalities) that I outlined in my previous posts are much greater than Jesse believes. By not paying for these costs, our corporations and other owners of means of production are essentially stealing from not only the American people, but all of humanity.

In reponse to Alvin, this is how I justify the majority forcing the minority to pay higher taxes.

Of course, the major problem here is that the we can argue all we want about what the true costs and benefits of these externalities are. It's very difficult to argue one way or another. So what can do to try to quantify these costs and benefits?

One could attempt to do a meta-comparison by comparing results of our current American system to that of other countries (like GDP per capita--I find that that much more agreeable than unemployment). However, I am skeptical as to the validity of a multi-national comparison for a number of reasons. Our nation's wealth owes almost as much to historical happenstance of circumstances (i.e. our geographic location, free land as a safety valve to the poor for almost half our existence, large number of natural resources) and exploitation of other countries (both the past effects of imperilaism and our current exploitation of third world labor) as it does our current system, itself.

I am interested in a historical comparison of American taxation, productivity, and distribution of wealth. However, I've been too lazy to dig up hard numbers. I hate making claims I can't back up, but here's a go. I believe that the top marginal tax rate for most of the first 70-80 years of the last century was above 70%. In fact, during the middle of the century, it was over 90%. Thanks to Reagonomics, it very rapidly declined and is now about 35%. Meanwhile, 1% of the population now holds approximately 90% of our wealth (or something like that--this is where I need to do research). That ratio has been getting worse and worse, not coincidentally, at the same time the highest marginal tax rates have been falling. Likewise, poverty rates have been climbing in a very similar way.

I should take some time to argue why all of this is bad, because I'm sure there are apologists who would say it isn't, but I'm runing out of time before my kid wakes up. So, if anybody **cough**esse, wants to tell me argue why this isn't bad, that's fine with me. (But it's all fun and games, right Jesse--especially since I'll actually agree with you later on here).

Another question of importance is "what should we tax?" Jesse has argued that we should tax consumption. In general, I think this is a very bad idea, because it becomes an essentially regressive tax. Those who have the least amount of money spend the most (percentage-wise) on consumption, while those who have the most amount of money can afford to save money, avoid taxation, and then make even more money.

And while we're talking about savings, while I think we should stay out of debt and encourage a small amount of savings for emergencies, I think we should discourage people from saving large amounts of money. ANY amount of savings has a negative effect on the current economy, because it represents money that is not being put into circulation to make more money. So if we're going to encourage savings, it should be just the minimal amount to take care of reasonably expected emergencies.

Nature of Government

I'm with Elliott. We need to stop looking at government as being somebody else forcing something upon us, and more as a social contract in which we all participate.

But, what do we do about the fact that we can't all agree all the time? I think we all agree that we can't just have a society where everybody can do anything they want just so we can make sure that no one should have to be forced to do anything. We have a right to force people to abide by certain rules that interfere too much with the rights of others--i.e. no murder, no theft, not running red lights, etc.

So we're left to walk the line between "freedom of choice" and protection of other people's rights to life, liberty, and pursuit of happiness. The issues that we've been debating are all hard issues along that line. It's hard to say just where on this spectrum of "freedom of choice" and "protection of rights" things like pollution and ownership of limited resources belong.

Also, I was going to argue with Jesse's assessment that government is, for the most part, no different than any other entity, but I think I'll save that for another day.

Legislating from the Bench

It would probably be pretty easy for me to backtrack from this statement by saying I was being technical when I said that "judges do not legislate." Technically speaking, of course, they do not. They interpret laws. They merely provide their best interpretation of laws that are ambiguous, or strike down laws that Congress had no right to make in light of the constitution. Congress (and by extension, we, as a people) then have the power to make laws that are not ambiguous and/or do not violate the Constitution.

But I'm not going to back down here. When people say that judges legislate from the bench, what they are really saying is that the judges have a different interpretation than they do, but they are saying it in such a way as to dismiss the legitimacy of that interpretation and ascribe typically dishonorable motivations to the judges who hold that different interpretation.

Most of these judges have no aspiration to "legislate." Yes, some of these judges are not generally elected, but these are not people who are appointed on a whim, nor are these people who have no reason but partisanship for making their decisions. These are people with very methodical and thorough understandings of the law, which understandings cause them to hold oft-times difficult to categorize beliefs. For these beliefs and legal understandings, they at one point were appointed office by people we trusted enough to elect to office. The beliefs of these judges are, generally speaking, quite centrist. Their attitudes reflect the attitudes of different populations of the American people very well (which is unfortunate in many circumstances).

I guess what I'm getting at is that by dismissing judicial decisions as partisan-minded activism, we disrespect the judicial process, the judges themselves, and the opinions of the many Americans who hold the same beliefs as the judges. I'm not saying we have to agree with every decions handed down by a judge, or every opinion held by every American citizien, but we should at least take the time to respect the legitimacy of their opinion. Until we take the time to understand one another, all we are doing is yelling back and forth, getting no where.

Social Conservatism

So finally, on to the main topic of the day--social conservatism. I liked Alvin's story about someone trying to convince him to be a Democrat. I think I was in much the same frame of mind as Alvin coming out of BYU. I wish the BYU environment would more openly challenge students to develop political consciences for themselves. I think American Heritage was supposed to do this, but it didn't. Even in law school, by which time I'd become more liberal minded, it was difficult to have a fair and open discussion of politics.

The first time I ever forced myself to actually build my political consience from the ground up, I became a libertarian (this was for about a year right after 2001--obviously, I have since changed my mind on many issues). The most difficult aspect to accept of libertarianism was, for me, the idea of being socially liberal. I never made it all the way there, but to this day I still believe there are a lot of "private" issues that the government has no business being involved in.

For a while, one of these was gay marriage. Morally, I'm opposed to it. Emotionally, my revulsion to homosexuality is complicated by the fact that one of my sisters is gay. Intellectually, I think my opinion is similar to Jesse's--except I would argue that it was perfectly legitimate for the court to decide what they did. I question whether government has any role endorsing any kind of religious institution, and thus I question whether government should endorse marriage. The fact that this is the only political issue I've ever seen the church become involved in, however, has me looking for ways to intellectually reconcile things. So, anyone out there have good secular arguments for it? Particularly since, as a California citize, I need to decide how to vote?

Social Conservatism and Gay Marriage

Ryan asked me in a comment to my previous post to explain my not being a "social conservative". The issues he asks about are abortion, gay marriage, birth control, abstinence education. Yes this is what I mean by "social conservative" issues. It would take a book to really describe my views on all these issues, but the brief answer is that I do not believe the government should be involved in most of them. I am as against Mike Huckabee and Harriet Miers (proponents of "social conservative" big government and judicial activism) as I am left-wing judicial activism and big government. Briefly on some issues:

1. Birth control. I'm not sure the "Right to privacy" here was correctly decided. I should read more about it and form a more educated opinion. But in any case I see no reason for the government to be involved here.

2. Abortion. Before "life" begins (life here defined as having rights separate from the mother) this is the same as #1. But of course the government should be involved in infanticide, so it comes down to when this "life" begins. A very hard question. Is it too hard to be left up to 9 unelected judges? Or too hard to be left to the tyranny of the majority? This one will require its own post later.

3. Gay Marriage. Beasley asks below for secular arguments against gay marriage. Mine are secular but only sort of against gay marriage. The question, again, is why is government in the marriage business? How would my life be different if the government recognized no marriages? The only difference is that I would not receive certain benefits the government now provides to married couples---but I would still be married of course. So government is involved because people originally saw a positive externality (here we go again) from marriage and government played a role to maintain/encourage that institution. If that is the case we need to ask whether that externality still makes sense and whether gay marriage generates the same externality. That is an interesting and difficult question. It most certainly is not a "rights" issue---the government does not grant a "right" to marriage, it confers benefits on those contributing a positive externality. It would be fine, for example, for the government to recognize no marriages at all---marriage is not a "right" given you by the government (imagine the government recognizing no one's right to speech or due process...marriage is just not the same). It is totally inappropriate therefore to be decided by the courts. If states believe positive externalities are generated by gay marriages they can encourage them if they want through legislation. But the court cannot find "rights" to things that were never "rights" to begin with. The California court (like my own MA court), seems to view itself as being in the "fairness" business---confusing rulings on which laws are "fair" with which laws violate rights. Marriage laws may be totally unfair to single people---in the same way that income tax laws may be totally unfair to rich people---but these are not "rights" issues for the court to decide.

4. Prayer in school. Government should not be involved.

Ok this is longer than I intended (as usual). I believe in limited government---that applies equally to things I like as it does to things I dislike. This is consistent with my earlier points to Karl on taxation---it is not enough to say "I should not have an abortion" in the same way it is not enough to say "I should help the poor". The question is whether one group of people (the majority, maybe) should force another group of people to do something. Compulsion is the issue here.

By the way I feel I should mention I haven't always been in agreement with church leadership here. The church has involved itself in "moral" issues and encouraged us to do the same. I believe it has sometimes failed to appreciate the distinction above---just because I believe something is immoral does not mean I should force others to act in some way.

And with that I'm off to PEC :)

Constitutional Law

One of my favorite things about my career as an appellate lawyer is the amount of constitutional law I get to deal with on a regular basis. In fact, I have a case pending in the California Supreme Court interpreting the constitutional right to an unbiased trial judge. There is no question that we have a federal constitutional right to a trial before an unbiased judge who is fair in fact. What is left open, is whether that right further includes the right to a trial before a judge who is free from the mere appearance of bias. Should make for an interesting opinion from the Cal Supremes.

I would like to make a few comments as to the notion of the Constitution being a living document. The Framers had great insight and wisdom in drafting a document that would be vague or ambiguous enough to allow for changing circumstances, but yet clear and concise enough to withstand the erosion of time and stand as an ensign to the world of an inspired declaration of self-government. The danger in simply concluding that the Constitution is a "living document" subject to interpretation as circumstances change is that if we go too far in such a direction, we lose the contextual tether which explains the Framers' intentions. By the same token if we unyieldingly keep the Constitution moored to 18th century thought, we run the risk of finding untenable or even unpalpable interpretations of that document in a society that has certainly evolved in the last 200 years. Consequently, there must be a middle ground. Contextualism and originalism which seeks to understand the original intent of the Framers is an excellent starting point for constitutional interpretation. However, it would be unwise to neglect or ignore the lessons of the last 200 years. By and large, I have found that the United States Supreme Court does a good job in reaching that balance.

Perhaps in a later post I will say a thing or two about legislating from the bench. In the interim, and in a related vein, I am interested to hear what the outside world (outside of California) has to say about our Supreme Court's recent ruling on gay marriage. My office, sadly, lost that case. This was a classic example of judicial activism in which the high court decided to legislate from the bench on the definition of marriage. I am most interested in hearing good secular arguments for why marriage should be defined as only between a man and a woman -- take God, the Plan of Salvation, and any other spiritual doctrine out of the mix and what compelling arguments are left?

On Judges

A few quick comments on Alvin's post below:

1. I have not read the Rex E. Lee book mentioned below but it sounds interesting---maybe someone should select it for the book club?

2. I'd like to emphasize that when Alvin criticizes "conservatives" below for inconsistency he is referring, in my opinion, to social conservatives. Having called myself a conservative earlier I think it's important to differentiate---I do not consider myself a social conservative and there are many conservatives who would not favor prayer in school/abortion restrictions etc. This is another example of where I think party affiliation can be misleading.

3. Scott wrote awhile back that he favored a "living constitution" approach and Karl has mentioned his dislike for the term "legislating from the bench." I disagree with them on the role of the judiciary but would like to understand their position better. My question for them: is it possible, in your opinion, for the supreme court to wrongly decide a case, or to overreach? If so, on what basis would you decide that?

4. I have recently become a bit of a supreme court junkie. This is almost entirely due to one site: http://www.oyez.org/. You can listen to the oral arguments for almost any recent case before the court. You can also read the opinions (which you can do at other sites also of course). It has given me a greater respect for all the justices---most especially those with whom I disagree---and I highly recommend spending some time there. I will warn you that it may make you, like me, desperately wish you had another life to live to study constitutional law.

A Lawyer Looks at the Constitution by Rex E. Lee

First, let me make a confession. It was not long after I left BYU that someone was trying to convince me to become a Democrat. This person made several convincing arguments, and my only comeback was "Yeah, but they believe in abortion." I was very naive. I now think voting based on the abortion issue is silly, and it's an easy excuse not to think about the many other issues. While I'm still pretty uneducated, I have learned a lot since BYU, but I blame all of you (and BYU) for not educating me about important political issues a lot sooner.

Anyway, as part of my quest to become a reasonably informed citizen, I just read "A Lawyer Looks at the Constitution", by Rex E. Lee. My uncle, a lawyer, said it's his favorite book on the Constitution, but unfortunately, it is no longer in print (so we can never read it for book club). So I thought I'd throw out some of the things I've learned, and you can tell me how much more I need to learn.

1. The book never talks about political parties or liberal/conservative judges. The supreme court has obviously had to make a lot of tough decisions, but 98% of the time I found myself completely agreeing with their decision and admiring them for their wisdom and forethought. That's a much higher percent of the time than I agree with the President or Congress. So I guess I don't really worry too much about what judges the president will appoint. Because all nominees need approval from the Senate, I think that weeds out most of the most extreme individuals.

2. I think I'm finally understanding what politicians are saying when they use Karl's least favorite phrase, "legislating from the bench". While technically it is not possible, there are certainly examples in history where that phrase might apply. (for you lawyers out there, Lee cites Lochner v. New York and the substantive interpretation of Due Process as an example)

He also says that Roe vs. Wade falls into this category. The decision cites a right of "privacy" which is not found anywhere in the Constitution. He also quickly points out, however, that the same reasoning that protects family planning in Roe v. Wade might also protect the people someday against a law limiting family size, like they have in China. He also points out that the rulings that made prayer in school illegal is what protects the religious rights those that want prayer in school so highly value.

Rex Lee comes down in favor of the reasoning that made prayer in school illegal and against the reasoning in Roe v. Wade. I'm not one to argue with the great Rex Lee. It is a slippery slope in allowing the courts to interpret things into the Constitution that aren't there. So far, we've generally had a pretty reasonable supreme court, but the potential for abuse is certainly there. I can understand the "living document" line of thinking, but if the times are really changing, then lets change the constitution through the amendment process not through the supreme court. However, I think most conservatives are wrong in the way they want to pick and choose. They are against "legislating from the bench" when it works against them (abortion), but they are for it when it works for them (school prayer or in the future, family size).

3. I learned that before the 14th amendment the bill of rights only applied to the federal government and that states could make laws discriminating against religion, etc. So when Buchanan said he could do nothing to help the Mormons, technically he was correct.

4. The government was designed to be inefficient. This protects us, as frustrating as it is. However, much of what our government does that directly effects each one of us is done by government bureaucracies (like my very own FDA), and these bureaucracies are not directly accountable to the people. They are the "4th branch" of the government. I guess I already knew this, but this area is key to most government philosophies.

OK, my kid is crying, so I guess I'll stop there. I already offended Ryan enough with my last post that he didn't want to have lunch with me. And the more I say, I'm probably only digging myself into a bigger hole.

PS I just read Elliott's post about taxes, and he said the law about taxes is the will of the majority so we are not being forced to pay so much as abiding by a group decision. This was interesting after reading so much about the Constitution and how the Constitution protects the rights of the minority. Obviously, high taxes are not against the Constitution, and I'm not arguing that they should be. However, I think the topic of the rights of the majority to tell the minority what to do with their money is an interesting one, and I'm looking forward to additional insight.

Things are gonna change, I can feel it

(The title, by the way, originates from song lyrics that just popped into my head, and though I am actually for the first time in my post-Republican life "proud of my country"--er, perhaps I shouldn't quote candidates wives--rather, I mean to say optimistic that positive change in politics is possible, I by no means feel that change is inevitable).

Paul, I agree with almost everything you're saying except, particularly with regards to the increasing ineffeciency of our two-party system over the last few decades. Too many people treat politics as entertainment. Parties are like sports teams. People follow them without questioning their agendas. In fact, as you and Jesse both note, the parties seem to dictate most people's politics.

However, I don't agree with your skepticism about the parties being vehicles for change, partly because I don't see any other force capable of effecting change. But, more importantly, I believe we are currently witnessing a reclamation of the parties by the people. Both candidates are, in many ways, outsiders to their own parties. The old guards of neither party "wanted" their candidates--but the people have spoken.

Regarding your request for opinions into the judiciary, perhaps you should propose a more specific topic, because I could go on for a while. However, I should say that there two types of comments about the judiciary that bug me--(1) any comment that that includes the phrase "legislating from the bench"--if you want to say that you don't agree with an interpretation put forth by the court, that's fine, but the judiciary does not legislate; (2) any comment that suggests that any judge is somehow in the pocket of one party or another.

As for Jesse, I'm really looking forward to a good discussion about free markets.

Politics: Change we can believe in, but should we?

Spoiler: Contains the words Democrat and Republican and has candidates' names

Forgive me for specifically referring to somewhat current events—hopefully someone will be able to straighten me out—but I actually question the premise that change is likely to come from within one of the two major parties. Not that I'm counting on Ralph Nader either, I've just been disillusioned by the entire political process.

I still consider myself a republican—but I've recently come to believe that party leaders, both “Democrats” and “Republicans”, don't actually believe in a democratic republic. That is, I question the amount that the public has an impact on government . Are the people really considered at all except to what point our votes can be manipulated to achieve the voting outcomes that favor our establishment? Why are Iowa and New Hampshire first in the primaries—why not a state with a large population like Florida, New York, or California? Are they more tractable? I am in awe of how much the Republican and Democratic primaries appear to have fallen in line the way that establishment would like. The Guilliani-Romney-Huckabee-McCain media courting timeline, the superdelegates, etc.

In fact, I've begun to question how different the two parties really are—a friend of mine pointed out to me that from a global perspective (compared to other nations' parties), the two parties are very similar. “Compasionate conservativism” and “fiscal conservativism” are the new bywords of the GOP rather than just plain conservative and “social progressivism” seems to be used by the “liberal media” to describe the democratic party. I don't see as much difference in the two parties as I used to think I saw: 2 sides of same coin, keeping things going the way they are.

I do agree with Jesse in that people affiliate themselves with a party and accept the policies canned, which is why I agree that it would only make sense to me to discuss politics point by point rather than by parties.

Our NV GOP caucus was a farce, by the way:
http://www.lasvegassun.com/news/2008/apr/27/ron-paul-campaign-dominates-convention/ links to this (poorly written, but amusing): http://www.dailypaul.com/node/47172

Incidentally, I did follow the Ron Paul campaign—I think that while it may result in little presently, it brings to light the growing discontent with our politics.

I am interested in the Judicial department. Roberts and Alito have both been interesting to me—I'd be curious to see what you Legal types would have to say.